Retirement looms for judge Kemal Bokhary

Retirement looms for judge

Wednesday, March 28, 2012

Noted appeals judge Kemal Bokhary, known for being opposed to seeking Beijing's interpretation of the Basic Law, will likely have to retire in October even though he would like to stay on.
The Court of Final Appeal permanent judge will soon reach the retirement age of 65.
Bokhary was quoted by the Hong Kong Economic Journal as saying that he would like to continue to serve but the judiciary has not invited him to stay on.
However, he declined to comment on this yesterday.
Leaked US diplomatic cables outed by WikiLeaks last year quote Bokhary as saying all five Final Appeal judges, including then chief justice Andrew Li Kwok- nang, had seriously considered resigning in 1999 after Beijing reinterpreted the Basic Law to overturn their ruling on the right of abode.


According to the website, Bokhary told the local US consulate in 2007 that the judges eventually decided not to resign as "you can only do that once."
Bokhary also argued against the court asking Beijing to interpret the Basic Law with relation to the famous Congo case involving policy on state immunity, which it did after a split decision.
The case saw a US fund claim some Hong Kong assets belonging to the Democratic Republic of the Congo, but it was dismissed.
A provisional ruling on June 8 said a state's commercial activities are immune from litigation in the SAR. The verdict was upheld by Beijing.
Apart from Bokhary, fellow permanent judges Patrick Chan Siu-oi and Robert Ribeiro are also due to reach retirement age over the next two years.
Legal commentators said the retirement of the three top judges will make it possible for the next chief executive, Leung Chun-ying, to appoint conservative candidates to their posts.
Under the existing mechanism, the chief executive can appoint judges based on the recommendation of the Judicial Officers Recommendation Commission, of which the justice secretary is an ex-officio member, under Basic Law Article 88.
But the choice must be endorsed by the Legislative Council.
Barrister and lawmaker Ronny Tong Ka-wah said there are loopholes in the mechanism.
"There is no exact criteria on how long a judge should have worked in the Court of Appeal before being promoted to serve as a final appeal judge," Tong said.
"The appointment of Court of Final Appeal judges by the chief executive is merely based on the recommendations of the chief justice, secretary for justice and representatives from the legal profession in the commission without public involvement," he noted. "In theory, it is possible for the chief executive to appoint anyone."
But he added that permanent judges appointed so far have been experienced, capable and liberal.
Simon Young Ngai-man, director of the Centre for Comparative and Public Law at the University of Hong Kong, said Bokhary's rulings show he is dedicated to safeguarding human rights and the freedom of expression and assembly.
Young said he cannot see any Court of Appeal judge who shares similar views.

http://www.thestandard.com.hk/news_detail.asp?pp_cat=30&art_id=121110&sid=35878882&con_type=1